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Barry Schwartz: Here we go, Matt Van Wagner is modding up this session.

3:44

Barry Schwartz: Debrah Wilcox is up first, she is from Baker & Hostler

3:45

Justin Davy: Whats in a name?

Auctionweb is now eBay and ValueJet is now Airtran. There's a lot in a name.

3:45

Barry Schwartz: Auctionweb is eBayPhillip Morris is AltriaValueJet is Airtran

3:45

Barry Schwartz: There is a lot in the name

3:45

Justin Davy: Just because a word is in the dictionary does not meant that it is "free" to use

3:46

Barry Schwartz: Generic words is not a trademark, such as Apple

3:46

Barry Schwartz: Descriptive marks are not yet enough to be a TM

3:47

Barry Schwartz: Suggestive words give an idea of serivces

3:47

Justin Davy: Trademark Strength Spectrum

Generic - not a trademark (dictionary meaning) Apple for applesDescriptive - not yet strong enough to be a mark (labrador retreiver)Suggestive - gives idea os the good servicesFanciful, Artibrary, Invented - No obvious connection to the goods

3:47

Barry Schwartz: Fanciful, arbitrary, invented has an onvious connection, such as Twitter (tweets)

3:49

Justin Davy: Trademark Rights:In the US, based on first use or first to file an intent-to-use application

3:49

Justin Davy: In many countries, based on first registration

3:49

Barry Schwartz: In US, it is first to use but in other countries it may be first to register the trademark.

3:50

Justin Davy: InfringementUse in commerce of anothers mark that is likely to cause consumer confusion

The strong the mark, the stronger the protection against the infringement

3:51

Justin Davy: Usually, for there to be use in commerce, the mark is used on the goods or in connection with the services being sold, such as on labels, packaging and advertising

3:51

Barry Schwartz: She shows examples of Webkinz

3:54

Barry Schwartz: She then mentions the Rescuecom vs Google case, which you can learn more about over here.

3:55

Justin Davy: TM law is meant to protect consumers from being misled in their purchasing decisions

3:55

Barry Schwartz: Next layer of analysis over infringment after use in commerce is likelihood of consumer confusion

3:56

Barry Schwartz: Are these people trying to trade off the good will the TM owner established?

Justin Davy: Questions particular to keyword-triggered ads:- Are all users looking for the trademark owners' official site?

Example - Official Webkins Plush Toys vs Webkins

3:58

Barry Schwartz: Are all users looking for a trademark by searching actually looking for the official site?

3:58

Justin Davy: I guess that's spelled Webkinz

3:59

Barry Schwartz: Are users able to tell the difference between the various ads, between official owners or not?

3:59

Justin Davy: Are users able to distinguish between sponsored results and the trademark owner's ads?

3:59

Barry Schwartz: I am freezing up, need to reboot...

4:00

Justin Davy: Consumer Confusion can come from a banner ad not identifying the sponsor

4:05

Justin Davy: Permitted uses of trademarks:

Descriptive fair use of mark in its ordinary dictionary sense

To identify the authorized productResellersCompatible WithProviding information (bloggers writing about brand)Comparative advertising (comparing your product by name to another Ex. Pepsi to Coca Cola) has to be truthful, backed up by scientific studies

4:06

Justin Davy: Ahh the days when meta keywords mattered.....

4:06

Justin Davy: Example of Terri Wells vs Playboy case

4:06

Justin Davy: She used Playboy etc in the meta keywords area

4:07

Justin Davy: While Google may not care about use of the meta keyword tag, courts still do.

4:08

Barry Schwartz: Funny, cause Matt Cutts of Google had a blog post and video to show how people should now sue each other over keyword meta tags